After a partner withdraws but keeps handling the firm's trial work on referral, can his name stay in the firm name or appear as 'of counsel'?

Plain-English summary

A lawyer identified as "D" had practiced as a partner in the firm "A, B, C & D." He proposed to withdraw as a partner and move to an adjacent but independent office, under an arrangement in which he would continue to handle his former firm's trial work on a referral basis. He asked two questions: whether the firm name "A, B, C & D" could be continued, and whether he could be listed "of counsel" on the firm's letterhead.

The committee concluded that EC 2-11 explicitly forbade continuing "D's" name in the firm name after his withdrawal as a partner, because it would be misleading to include in a partnership name a lawyer who is not in fact a partner and not responsible for the conduct of the partnership's business. It answered the second question affirmatively, relying on DR 2-102(A)(4), which permitted a lawyer to be designated "Of Counsel" on a letterhead if he had a continuing relationship with a lawyer or law firm other than as a partner or associate. One committeeman dissented from the "of counsel" holding, reasoning that the quoted language was not intended to apply to a lawyer who proposed to carry on a regular and active independent practice apart from the firm he had left.

Currency note

This opinion was issued in 1971, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility (EC 2-11 and DR 2-102(A)(4)), the subject matter of which is now addressed by Rule 4-7.21. Treat this page as historical context, not current guidance. Verify against current Rule 4-7.21 before relying on any specific requirement mentioned here.

Common questions

Q: Could the withdrawing partner's name stay in the firm name?

A: Under this opinion, no. The committee read EC 2-11 to forbid keeping "D's" name in the firm name after he withdrew as a partner, because doing so would misleadingly suggest he remained a partner responsible for the firm's business.

Q: Could he be listed "of counsel" on the letterhead?

A: The committee said yes, under DR 2-102(A)(4), if he maintained a continuing relationship with the firm other than as a partner or associate. One member dissented, doubting that the "of counsel" designation fit a lawyer carrying on a separate, active practice.

Q: Did handling the firm's trial work on referral keep him in the firm name?

A: No. The continuing referral arrangement did not make him a partner, so the opinion required his name to come out of the firm name even though he kept doing the firm's trial work.

Background and rules framework

The opinion interpreted the former Code provisions on firm names and the "of counsel" designation (EC 2-11 and DR 2-102(A)(4)). In current Florida practice, firm names, letterheads, and the "of counsel" designation are regulated by Rule 4-7.21, which carries forward the principle that a firm name must not be false or misleading. The Model Rule analogues are Rules 7.5 (firm names and letterheads) and 7.1 (communications about a lawyer's services).

Citations and references

Rules of Professional Conduct:

• EC 2-11; DR 2-102(A)(4) [Code of Professional Responsibility; subject matter now in Rule 4-7.21]

See also

• FL Bar Ethics Op. 72-29: Non-Florida Lawyer on Letterhead
• FL Bar Ethics Op. 72-18: Partner on Leave and the Firm Name
• FL Bar Ethics Op. 72-39: Firm Name and Deceased Partner
• FL Bar Ethics Op. 71-66: A Lay Company's Name on the Window

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-71-49/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-71-49-2.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 71-49
October 18, 1971
Advisory ethics opinions are not binding.
When a partner withdraws from his firm, he may not continue to be listed as a member of that firm, even though he will continue to handle its trial work on referral basis. The attorney may be listed "of counsel" with his former firm if he maintains a continuing relationship with it.
CPR: EC 2-11; DR 2-102(A)(4) [See current 4-7.21]
Chairman Clarkson stated the opinion of the committee:
A member of The Florida Bar, here identified as "D," has in the past practiced as a partner in the law firm of "A, B, C & D." He now proposes to withdraw from the firm as a partner and to occupy an adjacent but independent office under an arrangement whereby he will continue to handle his former firm's trial work on a referral basis. He inquires whether:
1. The firm name of "A, B, C & D" may properly be continued under these circumstances, and
2. "D" may be listed as "of counsel" on the firm's letterhead.
The Committee has concluded that EC 2-11 explicitly forbids continuing "D's" name in the firm name after his withdrawal as a partner. The obvious reason underlying EC 2-11 is that it would be misleading to include in a partnership name the name of a lawyer who is not in fact a partner and consequently not responsible for the conduct of the business of the partnership.
The inquirer's second question is answered in the affirmative. DR 2-102(A)(4) provides that: "A lawyer may be designated 'Of Counsel' on a letterhead if he has a continuing relationship with a lawyer or law firm, other than as a partner or associate." One committeeman dissents from this holding, theorizing that the quoted language was not intended to apply to a lawyer proposing to carry on a regular and active law practice independent of the firm from which he has withdrawn.